1. It is accepted that the Tribunal's power to discipline legal practitioners who fail to pay tax is exercised having regard to this broad protective purpose. However, it should be pointed out that the role of the Tribunal is not to protect the revenue.
2. Returning to the decision of Emerton J in Turner, her Honour held that a legal practitioner failing to file income tax returns and pay tax over an extended period :

(a) demonstrates an absence of the honesty and integrity that the public is entitled to expect from a legal practitioner;

(b) reflects the practitioner's hypocrisy in purporting to practise and uphold the law while at the same time committing serious breaches of the law;

(c) shows disregard for the legal practitioner's civic responsibilities; and

(d) takes advantage of the public services made available through taxation while expecting fellow citizens to pay for those services through their taxes (many of whom will have less capacity to do so than the legal practitioner.[9]

1. The Tribunal is satisfied that the respondent's conduct has brought the legal profession into dispute and damaged public confidence in the system generally.

1. The applicant concedes, and the Tribunal agrees, that specific deterrence is of limited importance in this matter as :
   1. There are limited opportunities for further offending because of the late stage in the respondent's working life; and
   2. The respondent has adduced evidence of remorse.

1. This is a principle of more significant application as legal practitioners should understand that if they do not comply with their taxation obligations, they will face a sanction.

1. Matters referred to above prima facie indicate that a disposition of a suspension of the respondent's practising certificate is warranted. His repeated failure to comply with his obligations despite the Court orders constitutes an aggravation on its face. However, it is necessary to consider whether the respondent's failure to comply and breach of the Court orders arose from his disregard of his obligations or his inability to discharge those obligations for whatever reason.

IS THE "DISASSOCIATED STATE" EXPERIENCED BY THE RESPONDENT A MITIGATING FACTOR?

1. There is no suggestion that the psychological state experienced by the respondent constitutes mental illness. However, that is not to say that it was not a significant factor in determining his behaviour. If one looks at the respondent's age (now 60) and the period of his income earning life, together with his record of delinquency, it is clear that the pattern of delinquency commenced only in what may be regarded as the second half of his income earning career. It follows that there must be some reasons for the pattern of delinquent behaviour which emerged. It is clear that the respondent experienced considerable disruption to his personal life which provided the catalyst for his behaviour. I am satisfied that the ensuing behaviour over the years was primarily affected by the "disassociated state" or "head in the sand attitude" experienced by the respondent. There is no evidence to indicate any other reason why a previously law abiding member of the legal profession would fail to meet his obligations and fail to meet the requirements of Court orders. There must have been some powerful factor causing resistance. Whilst again acknowledging that the respondent was suffering from no diagnosed mental illness, it is accepted that his psychological state was sufficiently affected to be a powerful influence on his actions or, more specifically, his inaction.

OTHER RECENT CASES INVOLVING LEGAL PRACTITIONERS WHO HAVE FAILED TO LODGE TAX RETURNS

1. The Tribunal was referred to three recent cases :

Legal Services Commissioner v Long[10]

Legal Services Commissioner v Moore[11]

Legal Services Commissioner v Stirling[12]

1. Moore is of limited use for comparison as the disposition was made by consent, Mr Moore suffered mental illness and Mr Moore's conduct after the commission of offences was significantly different from that of the present situation to make comparison virtually meaningless.
2. In Stirling, the legal practitioner was suspended for three years. However, his lifestyle was a profligate one, unlike the present respondent who led a modest and much reduced lifestyle. It should also be noted that the decision in Stirling is presently under appeal.
3. In Long, the similarity is that there was a delay in proceeding which was regarded as a significant mitigating factor. It was argued also in the present matter that emphasis on Mr Long's mental illness distinguishes it from the present case. Mr Long's practising certificate was suspended for six months.

1. In giving weight to the respondent's psychological state, I am reluctant to downplay this merely because it is not said to be mental illness. It is clear that the respondent was incapable of remedying the situation because of his psychological state. It is accepted that the respondent found himself psychologically powerless to deal with these issues.

1. The respondent commenced meeting his taxation obligations in 2007.

1. The respondent has expressed remorse throughout. This can be verified as far back as 2006 when the respondent first reported his transgressions to the Victorian Bar. He has throughout the various investigations carried out by the Victorian Bar, its Ethics Committee, and the applicant, fully cooperated. When he was finally charged, he made an early admission and an early plea of guilt.

1. As noted above, the respondent reported his transgressions to the Victorian Bar in August 2006. It was submitted on behalf of the applicant that it was necessary to carry out investigations at each level prior to the matter becoming the subject of formal charge. However, the Tribunal received no further explanation as to what can only be described as an unacceptably long delay under circumstances where the subject of the investigation and subsequent charge initiated the matter himself and at no stage has contested his guilt. It would seem on any analysis that such a situation called for an expedited procedure. In this matter, delay has been inordinately long. Such a situation not only provides a mitigating factor for the respondent at a personal level, he having had the matter hanging over his head for over six years but it also dilutes the argument that the disposition of the Tribunal should carry severity in order to demonstrate protection of the public and protection of the reputation of the legal profession. In this case, the profession's own regulatory system has lacked rigour.
2. The Tribunal was urged by the applicant's counsel to place a specific value on that part of delay caused by the appeal to the Supreme Court and subsequent procedures. The Tribunal declines to place such a value on this aspect of the delay as, overall, the question of the appropriate disposition is not a mathematical exercise.

1. As stated earlier, the respondent has met his obligations since 2007. This has afforded him the opportunity to demonstrate a substantial period over which his behaviour can be described as reformed. It can also be said that this period of reformed behaviour demonstrates that the reputation of the profession is in large part restored insofar as it applies to the respondent.

1. No other matters adverse to the respondent were brought to the Tribunal's attention. Accordingly, the Tribunal concludes that he has not been the subject of any other disciplinary action.

1. It is beyond doubt that the respondent has rehabilitated himself. Equally, it is to the satisfaction of the Tribunal that he is presently fit to practice.

1. The respondent is now 60 years of age and in the twilight of his career. His practice is not what might be regarded as a particularly substantial one. The Tribunal is satisfied that disruption to his practice may well have a serious impact on his livelihood. Other than practice at the Victorian Bar, the respondent may well be unemployable. He has no real assets or superannuation. It has been argued on his behalf that a period of suspension would be a disproportionate sanction.

1. In exercising its sentencing discretion, the Tribunal must strike a balance between the seriousness of the offending and the mitigating factors so as not to arrive at a disposition which is on the one hand manifestly inadequate or, on the other, disproportionate to the seriousness of the conduct as to shock the public consciousness.

1. Having regard to all of the above factors and weighing them in the balance, the Tribunal is satisfied that suspension of the respondent's practising certificate is not warranted. The major mitigating factors leading to this conclusion are the acceptance of the impact of the respondent's psychological state and the effect of the inordinate delay in the conduct of this matter. Other factors are as stated above.
2. In all the circumstances, the Tribunal concludes that an appropriate discipline is a reprimand and a fine of $5000. It is also appropriate to order that the respondent is to advise the Legal Services Board of his discharge from bankruptcy within 7 days of that discharge and that whilst he continues to hold a practising certificate pursuant to s 4.4.19 of the Legal Profession Act 2004, his legal practice is to be subject to a condition that he is to inform the Commissioner in writing of any failure after today to comply with his taxation obligations within 7 days of any such failure.

[1] Legal Services Commissioner v Long (Legal Practice) [2012] VCAT 193

[2] Legal Services Commissioner v Moore [2010] VCAT 742

[3] LSC v Johal [2011] VCAT 1390

[4] LSC v Long [2011] VCAT 1164

[5] [2008] VCAT 2399

[6] Legal Services Commissioner v Turner [2012] VSC 394

[7] [2012] VSC 394

[8] [2010] VSC 266

[10] [2012] VCAT 193

[11] [2010] VCAT 742

[12] [2012] VCAT 347